No, the title is not meant to imply a post about the privacy implications of mobile medical apps for psychotherapy. Instead, we’re taking a look at how the government acts at cross-purposes to itself when it comes to the oh-so-slow development of rules for new technologies and markets. The last few weeks have seen a couple of remarkable announcements, one from the FTC about digital advertising disclaimers and one from the SEC about corporate financial disclosures. Both were presented by the agencies as ways to enable use of social media by corporations — but instead just make things much harder, if not totally impracticable.

Two weeks ago, the Federal Trade Commission basically said “to heck” with form factor and responsive Web design by concluding that disclaimers, caveats and related mandatory advertising disclosures cannot be put into a popup window and must be in the same “conspicuous” format — font size and all — regardless of the device or medium. The FDA had already cracked down on trailblazing pharma firms that tried Facebook advertisements on the same grounds. Both enforcement decisions demonstrate a complete lack of familiarity with new media and an inability to flexibly apply the principles of regulatory schemes to changing circumstances.

Even if, unlike advertiser contentions, potential “Do Not Track” mandates for Web browsing would not kill the Internet content industry, the FTC has signaled it is prepared unilaterally to dictate the size of social media ads in the guise of consumer protection. The old guidance allowed for “proximity” of disclosures — that is, disclosures that were “near, and when possible, on the same screen.” The new guidance places heightened emphasis on disclosures being clear and conspicuous to consumers across all platforms. The newly announced principle is that disclosures should be “as close as possible,” with short form disclosures such as hyperlinks or hashtags permitted only when their meaning is understood by consumers. Read more »

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This should have been a Super Bowl commercial!

via Wienerschnitzel – YouTube.
 

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TiVo

It is hardly surprising that as digital video recorders (DVRs) become more ubiquitous, their basic function (i.e., automatic time shifting of television shows) is rapidly becoming commoditized. When TiVO was introduced in 1999 it revolutionized TV by giving users control of what they watched, when they want to watch. So as that feature spread to other devices—and especially once DirecTV stopped licensing TiVo technology for its set-top boxes—it is only natural that pundits would begin declaring the death of TiVO. Can TiVo Reinvent Itself in Time? [paidContent].

But TiVO has never been a simple DVR device, Coupled with a smart filters, custom recommendations and a sophisticated “season pass” feature, TiVO offers to consumers a software-based platform for customizing the television experience, while it simultaneously offers advertisers and broadcasters a tremendous wealth of valuable data on viewing habits. Moving into the next decade, it is this information aggregation function that promises to be the value proposition for the business going forward.

With its highly intuitive and user-friendly software, TIVO is better-positioned than anyone else to help users sift through and manage “infinite choice” in the same way Google has made the Web itself searchable. Recording linear TV for later playback will continue to have its place, but as more Internet-delivered video comes to television screens, TiVO will be the front-end portal through which subscribers access TV, video-on-demand, broadband content, interactive services and advertising.

To me, this says that TiVO’s biggest competitor is not stand-alone DVR machines, but rather the advent of on-demand video devices like Netflix-enabled Blu-ray players, Roku boxes and AppleTV. The biggest question is whether the need for local storage of videos, whether on a PC or DVR, will survive the transition to Web-enabled streaming video. As sites like Clicker.com make Internet video fully searchable, is there enough value-added with TiVO to convince consumers to continue to buy a hardware device in order to get access to software?

Prediction: Within five years, the market will see TiVO-branded software for multiple operating systems, leveraging the company’s technological superiority in a way that Hulu and the like have not as yet even tried to match.

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The Australian company uSocial is selling Facebook friends to corporate customers for marketing and advertising purposes. Not enough Facebook friends? Buy them [Reuters]. Now I agree that it can be difficult for brick-and-mortar businesses to generate a loyal online social media following.  But that really is no excuse for transforming the truly social act of “friending” someone into a purely monetized, commercial relationship.  To the contrary, Facebook’s advertising platform allows sponsors to target the audience they are looking for whether or not the individuals have “friended” the company.

Can't Buy Me Love

So the purpose of buying friends — which, to be fair, is really buying leads, because uSocial cannot guaranty that the members contacted will accept friend requests for its clients — is rather to inflate the perception of the company’s brand as socially popular.  Want 5,000 More Facebook Friends? That’ll Be $654.30. Advertising audience is really secondary.  That makes it not that much different from what goes on with grocery store shelf space, movie reviews and the like.  It just is an order of magnitude more unseemly to do it in the context of a consensual social media setting.

Years ago (and soon again thanks to Beatles Rock Band), The Beatles sang that “money can’t buy me love.”  Well, it is a sad reflection on where we’ve come as a society that, in the 21st century, money can buy you friends.

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With increasingly frequent reports that American newspapers are in severe financial difficulty because of a rapid and accelerating shift of advertising revenue to other media outlets, it is fair to ask how citizens, investors and consumers will get their news in the next decade. Newspaper Ad Revenue Falls Nearly $2 Billion [Advertising Age].

This problem is one that is indifferent to politics. Whether you like the supposedly liberal New York Times or conservative Wall Street Journal or something else, not even the newspapers with the widest circulation are making any money online. The Detroit Free Press’ recent discontinuation of most home delivery to focus on Internet distribution is a serious cry for help.  

So if the “paper-and-postage business” dies on the newspaper industry — which is where it certainly seems to be headed — where does that leave us? Without any serious defenders of the 1st Amendment and certainly lacking news organizations with the scale and resources to report on our increasingly interrelated world.  Newspapers indeed have to reinvent themselves or die, but it is not at all clear what they should come back as in their next business model iteration.

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I've been tweeting for awhile that legacy newspapers are now completely in the same advertising market with online ads and face tremendous competitive challenges over the next few years. Well, this pretty much nails that diagnosis.  Tribune Co. Weighs Filing for Chapter 11 [WSJ.com}.

Of course, it begs the questions of how, if all news moves to the Net, we are going to be able to fashion an economic model for journalism in the digital age. Last time I checked, seemed like the vast majority of news sources on the Internet are either losing money, not monetizing the audience or support only a couple of low-overhead bloggers.

Could that be the legacy of Edward R. Murrow in the 21st century?

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I’ll let my op-ed in Sunday’s San Jose Mercury News speak for itself. Opinion: In the Tech Industry, Small Isn’t Beautiful Anymore. Might be a little narcissistic to blog about one’s own article, no?

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Seinfeld and Microsoft: More Proof that IT is Crazy. So says Mark Gibbs in backspin, adding that Redmond’s planned "Windows, Not Walls" tag line for combating Apple is lame.

Agreed wholeheartedly. Sorry, Bill Gates, but I’ll enjoy laughing at your advertising appearances with an archaic comedian most famous for a show about nothing.

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Everyone was a little bit calmer when the Federal Trade Commission launched its national “Do Not Call” registry to foil telemarketers last August. While it’s certainly not a panacea, it is a step in the right direction. Now, a 74-year old semi-retired federal judge in Oklahoma, goosed by the Direct Marketing Association, has held the FTC’s actions invalid, just days before the registry was to go into operation. Fool.com: Dinner, Interrupted.

It’s this kind of muddled logic that gives we lawyers such a bad reputation. Congress appropriated money to fund the FTC list and the agency has long had broad powers over both “deceptive” trade practices and “abusive” telephone solicitations. Yet the court held that the FTC did not have the power to ban unauthorized telephone solicitations because the Federal Communications Commission rejected that option more than 10 years ago, saying that because Congress in 1991 gave the FCC power to make a do-not-call list, the FTC could not do so. Nonetheless, it never addressed whether unauthorized calls can be declared “abusive” or whether the FTC’s general powers to engage in consumer protection regulation were sufficient — without regard to specific legislation on telephone solicitation — to support its actions. Read the opinion yourself and see.

The court’s analysis is legal hair splitting at its worst, a pure charade. As the FTC said in response,

“Congress passed the Do Not Call Implementation Act, which authorized the FTC to collect fees from sellers and telemarketers to ‘implement and enforce the provisions relating to the do-not-call registry.’ . . . This decision is clearly incorrect. We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls.”

That’s right. Telemarketing is a intrusive, costly and annoying, and the government has a right to stop it. The government here has decided to do so, with specific Congressional approval and funding. Judge Lee Roy West, a good old boy from Ada, Oklahomo who assumed “senior” status a decade ago, should find better things to do with his time. Clarity of thought is not a virtue of the feeble-minded elderly. Maybe we should all call Judge West’s house during dinner?

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